The legality of mutation entry and sale deed execution during the pendency of a suit for partition in a property dispute.

( 1 ) THOUGH the matter is listed for preliminary hearing in 'b' group, with the consent of both the parties, it is heard and disposed of by this order.

( 2 ) THIS is a writ petition filed by the petitioner challenging Annexure-C and C1 dated 10/10/2001 passed by the 2nd respondent-Asst. Commissioner in No. RTS:ap:26:99-2000 and the order passed by the 1st respondent-Deputy Commissioner in case No. RTS:revision:36:2001-02 dated 20/10/2003, mainly on the ground that since the petitioner is the bona fide purchaser of the property bearing Sy. No. 35/6 measuring 3 acres 15 guntas of land situated in Aheri village in sindgi taluk under register sale deed dated 15/6/1994 from the Respondent-5, which was fallen to this share in a petition. Since Respondent-6 being the power of attorney holder has executed a sale deed on behalf of Respondent-5, and ever since from the date of purchase the Petitioner is in possession and enjoyment of the land. Therefore, on the basis of the vardhi submitted by him the mutation was effect in the name of the petitioner. To that effect he has produced Annexure-D the record of rights to show that he is in possession and enjoyment of the same. Since Respondent-4 has been challenging the order of mutation before the Asst. Commissioner, the Asst. Commissioner has held that the since civil suit is pending between Respondent-4 and 5, therefore stayed any entry made in the record of rights on the basis of the sale deed. The mutation Entry No. 1982 was stayed. Therefore, the petitioner therein and one Shantabai respondent-5 assailing the said order, preferred a Revision Petition under Section 136 (3) of the karnataka Land Reforms Act before the Deputy Commissioner in No. RTS:revision:36:2001-02. After considering the materials placed on record, the Deputy commissioner, dismissed the revision petition. Therefore, he has come up with this writ petition, to quash Annexures-C and C1 passed by the Asst. Commissioner and the Deputy Commissioner.

( 3 ) HEARD the arguments of learned Counsel for the petitioner and learned Counsel for respondent no. 4 and Government Advocate for Respondent-1 to 3.

( 4 ) IT is contended by the learned Counsel for the petitioner that the petitioner is a bane fide purchaser of the land measuring 3 acres 18 guntas of land in Sy. No. 35/6 of Ahari village. Further, it is contended that the father of Respondents-4 and 5 are real brothers and they had jointly purchased the land Sy. Nos. 35/7b measuring 3 acres and 35/6, measuring 3 acres 18 guntas respectively. Accordingly, to the petitioner, after the death of Respondent-4 a partition took place among Respondents-4 and 5. Therefore, the land bearing Sy. No. 35/7b fallen to the share of Respondent-4 and Sy. No. 35/6 fallen to the share of Respondent-5. The petitioner being the bonafide purchaser of the said land from Respondent-5, therefore, the Tashildar who has rightly made the mutation entry, directing the parties to change the name of petition in respect of said land. Further, it is contended that under Section 128 of the Land Reforms Act, even without varthi, if sale took place under registered sale deed, the revenue authority is bound to effect the mutation on the basis of Form No. 't' received from the Sub-Registrar. In the instant case varthi has been submitted by the petitioner regarding purchase of the land, therefore his name has been mutated as per Annexure-D. The suit filed by Respondent-4 came to be dismissed but the revenue authority viz. , the Assistant Commissioner and the Deputy Commissioner who recorded the recorded the finding stating that during the pendency of the suit for partition a mutation was effected by the concerned Tashildar on the basis of the vardhi, is incorrect. Therefore, the assistant Commissioner and the Deputy Commissioner have wrongly come to the conclusion. Therefore, writ petition is maintainable and the order under challenge Annexures-C and C1 passed by the Asst. Commissioner and the D